Schrödinger’s CAU 

Henry County lawyers might need to consult with quantum physicists to figure out the legal status of a recent wind farm application.

Like “Schrödinger’s cat” – the famous thought-experiment where unfortunate kitty is neither alive nor dead until someone actually proves it one way or the other – the case for Calpine’s proposed wind project in northwest Henry County is stuck in legal limbo.

Background

Calpine requested a commission approved use (CAU) June 4 to move forward with the construction of the Big Blue River Wind Farm.

The Henry County Planning Commission took action on the CAU request during a large public meeting July 23 at Bundy Auditorium.

The CAU permit has three parts, all off which need five votes to pass.

The planning commission’s rules require any official action to have majority vote, that is, at least five votes either way, regardless of how many planning commission members take part in the actual vote.

One member of the nine-person board, Olene Veach, recused herself from any discussion or action on Calpine’s request due to a declared conflict of interest.

The planning commission voted 6-2 on each of the first two questions about the permit. Those votes found the CAU to be located in a zoning district where such use is permitted by the Henry County Development Code and the permit meets all the requirements set forth in the code.

The third requirement – “The proposed uses are consistent with the spirit, purpose and intent of these regulations, will not substantially and permanently injure the appropriate use of the neighboring property and will serve the public convenience and welfare” – received a 4-4 vote.

Because the final question did not receive a majority vote, Calpine’s CAU request was officially “not approved.” At the same time, because a majority of the planning commission members did not vote against the request, the CAU was not officially denied, either.

Like Schrödinger’s cat, the CAU request exists as both “not approved” and “not denied” until the lawyers get done with it.

Legal limbo, ‘Protective Appeal’

Henry County Zoning Administrator Darrin Jacobs said county attorneys are currently researching the final determination of the outcome of the July 23 public hearing and the proper procedures for moving forward.

“Until that determination is made, there is nothing to appeal,” Jacobs said. “Once findings have been completed, then legal counsel will give their recommendation on who, if anyone, can hear an appeal associated with the July 23rd hearing.”

Calpine acknowledged there is nothing to do right now that will further the process. But they have positioned themselves for an appeal, just in case.

Attorney Matthew Price, of Bingham Greenebaum Doll, filed a Notice of Appeal with the Henry County Planning Commission July 26.

“The vote on Question 3 did not result in affirmative, official action, as required. As a result, it is Big Blue River’s understanding that Question 3 is not ripe for appeal,” Price wrote in his letter to the Henry County Board of Zoning Appeals. “Nevertheless, out of abundance of caution, Big Blue River files this Notice of Appeal to preserve its rights in the event that it is determined that the 4-4 vote on Question 3 constitutes an official action that is appealable.”

According to Jacobs, as of Tuesday, there are currently no public hearings or discussions scheduled about the Big Blue River Wind Farm application or appeal.